Smith v. Thomas

• Decision Date: 11 January 1909
• Citation: 115 S.W. 504
• Parties: SMITH v. THOMAS.
• Court: Missouri Court of Appeals

115 S.W. 504

SMITH v. THOMAS.

Kansas City Court of Appeals. Missouri.

January 11, 1909.

Rehearing Denied February 1, 1909.

APPEAL AND ERROR (§ 713)—RECORD—CONSTRUCTION —BILL OF EXCEPTIONS.

Where appellant's abstract of record on appeal makes no distinction between the record proper and the bill of exceptions, the whole will be considered as the record proper, and as though there was no bill of exceptions.

Appeal from Circuit Court, Livingston County.

Action by Oscar L. Smith against Philip C. Thomas. From a judgment for plaintiff, defendant appeals. Affirmed.

Arthaud & Arthaud and L. A. Chapman, for appellant. John Davis & Sons, for respondent.

JOHNSON, J.

This is a proceeding to set aside an award of arbitrators. Appellant's abstract of record begins by showing matters which pertain to the record proper, and recites that a bill of exceptions was duly signed and filed, but no such instrument is in the record. A mass of evidence and other things that belong in a bill of exceptions is printed, but the abstract makes no distinction between record proper and bill of exceptions, and we have no means of knowing where one begins and the other ends. Not being able to know what is intended to be taken as matter of exception, we cannot do otherwise than to hold that there is no bill of exceptions before us. It has been held a number of times that an abstract thus defective leaves nothing but the record proper to be considered by the appellate court. Stark v. Martin, 126 Mo. App. 575, 105 S. W. 33, and cases cited.

Finding no error in the record proper, we must affirm the judgment. All concur.